Lying Down Next To Minor Victim May Lead To Outraging Her Modesty But Without Any Sexual Intent, Said Acts Wouldn’t Be Sufficient To Sustain Charge U/S.10 Of POCSO Act: Delhi High Court

The petitioner, by way of the revision petition preferred under Section 438 read with Section 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), had sought setting aside of the order on charge (impugned order) and the consequent order framing charge passed by the Additional Sessions Judge (SC-POCSO). By way of the impugned order, charges for offence under Section 354 of the Indian Penal Code, 1860 (IPC) and Section 10 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) had been framed against the petitioner.

The Single Bench of Justice Swarana Kanta Sharma held, “In this Court‘s opinion, the absence of even the slightest indication of a sexually motivated advance in the statements of the victim negates the foundational requirement of ‘sexual intent’, which is an essential element of an offence under Section 10 of POCSO Act. The act of touching and pressing lips or lying down next to the victim, though may result in violation of a woman‘s dignity and lead to outraging of her modesty, but absent any overt or inferred sexual intent, the said acts would fall short of meeting the legal threshold required to sustain a charge under Section 10 of POCSO Act.”

Advocate Amrita Jaiswal represented the Petitioner while APP Naresh Kumar Chahar represented the Respondent- State.

Factual Bakground

The in charge of an NGO had visited the police station along with the victim and one order of Child Welfare Committee (CWC) whereby the concerned SHO was asked to investigate the matter since the victim had reported that her paternal uncle (petitioner) had inappropriately touched her. Accordingly, the statement of the victim was recorded by the investigating officer (IO). She had informed the I.O. that she used to study in a school in Himachal Pradesh, and when she returned back to her home, the petitioner touched and pressed her lips. It was further alleged that when nobody was present at the home, the petitioner used to come and sleep next to the victim, due to which she used to feel uncomfortable.

On the statement of the victim, the present FIR was registered. Thereafter, the victim was medically examined. After the completion of the investigation, charge sheet was filed against the petitioner herein. By way of the impugned order, the Trial Court framed charges against the petitioner for offence under Section 354 of IPC and Section 10 of POCSO Act. Aggrieved by the impugned order, the petitioner filed the present petition.

Reasoning

The Bench found that the allegations against the petitioner were deeply concerning, particularly given the vulnerability of the victim, who was merely 12 years old at the time of the incident and is now 13 years old. It was noticed that the victim child was also abandoned by her mother when she was only four years old. Her father is an accused in a case wherein the elder sister of the victim herein had allegedly complained of sexual assault against her father, and he is facing trial for offence punishable under Section 376 of the IPC.

In this case, the petitioner, a 35-year-old man and the paternal uncle of the victim, is alleged to have engaged in inappropriate conduct during the victim‘s four-day visit to her grandmother‘s house. Reiterating that at the stage of framing of charges, the Court is not required to assess the evidence with the same rigor as at the stage of trial. “Thus, the Court must only determine whether the allegations, if taken at face value, disclose the commission of an offence. Any detailed scrutiny of contradictions or minor inconsistencies in evidence is a matter for trial”, it said.

“Importantly, under Section 354 of IPC, either of the elements – actual application of force and mere apprehension – can constitute an offence if they are accompanied by the intent to outrage modesty”, it added. Noting that the essential ingredients of an offence under Section 354 of the IPC were squarely met, the Bench observed, “The act of touching and pressing the lips of a girl child, especially in the absence of any plausible justification, falls well within the ambit of criminal force as defined under Section 350 of IPC. The provision clearly states that any intentional use of force without consent, which causes or is likely to cause fear, injury, or annoyance, constitutes ‘criminal force.’”

The Court stated that the repeated act of lying down next to the victim, and keeping his face extremely close to the face of the victim, when she was alone further intruded upon her personal space, creating a situation where she experienced fear or apprehension. Such conduct, in itself, satisfied the threshold of ‘assault‘ as defined under Section 351 of IPC.“The victim, having been abandoned by her mother at a young age, was residing under the care of the CWC in an NGO and had come to visit her family during a vacation. In such a scenario, where a child seeks familial warmth and security, any act of inappropriate contact by a family member in a position of trust is far more than just discomforting – it is a clear violation of her dignity, bodily autonomy, and modesty. Even a minimal physical contact, when done with the intent to or with the knowledge that it is likely to outrage modesty, is sufficient to invoke the provision of Section 354 of IPC”, the Bench further held.

Clarifying that the essential ingredients of Section 354 of IPC and Section 10 of POCSO Act are different, the Bench stated that while the former deals with the offence of ‘assault’ of use of ‘criminal force’ to ‘outrage the modesty’, the latter deals with committing any act, including touching vagina, penis, anus or breast of the child, with ―sexual intent which involves physical contact. The presence of ‘sexual intent‘ is the determining factor in distinguishing an act of mere physical force from an act that constitutes sexual assault under the POCSO Act.

On a perusal of the facts of the case, the Bench noted that there was no specific assertion or indication in any of her statements that the petitioner’s acts were driven by sexual intent. “In this Court‘s opinion, the absence of even the slightest indication of a sexually motivated advance in the statements of the victim negates the foundational requirement of ‘sexual intent‘, which is an essential element of an offence under Section 10 of POCSO Act. Thus, no offence under Section 10 of the POCSO Act was made out. As per the Bench, the Trial Court in the impugned order, which was entirely non-speaking, had concluded that a prima facie offence under Section 10 of POCSO Act was made out against the petitioner. However, the impugned order failed to assign any reason or explanation as to how this conclusion was reached by the Judge.

The Bench further highlighted that the practice by some Sessions Courts of passing four-line orders on charge – devoid of facts, arguments and analysis thereof and the reason to reach a conclusion as to why charge under a particular section is being ordered to be framed – is not appreciable. “Minimum reasons are expected to be recorded in an order on charge, especially in heinous offences, which would reflect application of mind and appreciation of material placed on record”, the Bench said.

Thus, partially allowing and partially rejecting the appeal, the Bench held that he charge for offence under Section 354 of IPC would be sustained. However, the petitioner was discharged for the offence under Section 10 of POCSO Act.

Cause Title: MRP (Identity Withheld) v. State (Nct of Delhi) [Neutral Citation: 2025:DHC:1378]

Appearance:

Petitioner: Advocate Amrita Jaiswal

Respondent: APP Naresh Kumar Chahar, W/SI Sunil

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